Kerala High Court

V.K.Selvan vs Sumithra on 3 June, 2025

                                             2025:KER:39060


        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

        THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

 TUESDAY, THE 3RD DAY OF JUNE 2025 / 13TH JYAISHTA, 1947

                    CRL.A NO. 1162 OF 2011

         AGAINST THE JUDGMENT DATED 31.03.2011 IN ST

 NO.2827 OF 2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS,

                           ALATHUR

APPELLANT/COMPLAINANT:

         V.K.SELVAN
         S/O.KRISHNAN
         VADAKKAETHARA, KIZHAKKANCHERRY PO,
         ALATHUR TALUK, PALAKKAD.


         BY ADV SRI.V.A.JOHNSON (VARIKKAPPALLIL)


RESPONDENTS/ACCUSED AND STATE:

    1    SUMITHRA
         S/O.RAMACHADRAN, PULINKUTTATHIL,
         CHALLITHARA, MANJAPRA,
         ALATHUR TALUK, PALAKKAD.

    2    STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, ERNAKULAM.


         BY ADVS.
                                           2025:KER:39060
CRL.A NO. 1162 OF 2011
                           2

         SHRI.K.P.SUDHEER
         SRI.SUMODH MADHAVAN NAIR

         SRI. RENJITH GEORGE, SR.PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
03.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                                      2025:KER:39060
CRL.A NO. 1162 OF 2011
                                    3

                           JUDGMENT

Dated this the 3rd day of June, 2025

The complainant in S.T.2827/2008, on the files of

the Judicial First Class Magistrate Court, Alathur, assails

judgment of acquittal in the above case dated 31.03.2011,

arraying the accused in the above case as the 1st

respondent. The 2nd respondent herein is the State of Kerala,

represented by the learned Public Prosecutor.

2. Heard the learned counsel for the

appellant/complainant and the learned Public Prosecutor in

detail. Perused the verdict under challenge and the records

of the trial court.

3. Parties in this appeal shall be referred as

'complainant' and 'accused' hereafter.

4. In this matter, on dishonour of cheque for

Rs.50,000/-, drawn on Kannambra Co-operative Service 2025:KER:39060 CRL.A NO. 1162 OF 2011

Bank Ltd., dated 18.06.2008, alleged to be issued by the

accused to the complainant in discharge of a legal liability,

the complainant approached the trial court alleging that the

accused committed offence punishable under Section 138 of

Negotiable Instruments Act, 1881 (hereinafter referred to as

'NI Act' for short).

5. The trial court took cognizance for the said

offence and proceeded with trial. During trial, PW1 and PW2

were examined and Exts.P1 to P8 were marked on the side

of the complainant. On completion of prosecution evidence,

the accused was questioned under Section 313(1)(b) of

Cr.P.C. and provided opportunity to adduce defence

evidence. Accordingly, Ext.D1 copy of agreement was

marked on the side of the accused.

6. On appreciation of evidence, the trial court

found that the case put up by the accused to the effect that 2025:KER:39060 CRL.A NO. 1162 OF 2011

she had issued Ext.P1 cheque as a blank signed one for a

transaction between the complainant and the accused for

sale of property of the complainant on receipt of Rs.20,000/-

as sale consideration.

7. While impeaching the veracity of the trial

court judgment, it is argued by the learned counsel for the

accused that in the instant case, even though Ext.D1

agreement is admitted by PW1, the specific case is that since

the agreement could not be executed, he received back

Rs.20,000/- paid on the date of execution of Ext.D1

agreement. According to the learned counsel for the

complainant, now the case advanced by the complainant

before the trial court is that the accused borrowed

Rs.50,000/- (Rupees fifty thousand only) from the

complainant on 12.04.2008 as ready cash and in order to

discharge the said liability, the accused issued Ext.P1 2025:KER:39060 CRL.A NO. 1162 OF 2011

cheque. According to the learned counsel for the

complainant, the issuance of blank signed cheque is

admitted by the accused for a different transaction. The

evidence of the complainant, who was examined as PW1,

regarding the transaction and execution of Ext.P1 cheque

was not shaken during cross-examination and therefore, the

trial court went wrong in believing the case advanced by the

accused.

8. Adverting to the matter in issue, the points

arise for consideration are :

1. Whether the trial court wrongly acquitted the accused on the finding that he did not commit the offence punishable under Section 138 of the NI Act?

2. Whether the trial court verdict would require interference?

3. Order to be passed?

2025:KER:39060 CRL.A NO. 1162 OF 2011

9. In this matter, according to the complainant

and as deposed by him as PW1, the accused borrowed

Rs.50,000/- from the complainant as ready cash on

12.04.2008 and Ext.P1 cheque dated 18.06.2008 was issued

to discharge the said liability. When the cheque was

presented for collection, the same was dishonoured as per

Ext.P2 memo and Ext.P3 intimation. Even though notice

intimating the dishonour of Ext.P1 cheque and demanding

the amount covered by Ext.P1 cheque was issued to the

accused, the accused did not pay amount and instead the

accused sent Ext.P7 reply.

10. During cross-examination of PW1 and also

as per Ext.P7 reply notice, the accused denied the

transaction between herself and the complainant. She also

denied the execution of cheque. In this context, the trial court

found that the complainant is duty bound to prove the 2025:KER:39060 CRL.A NO. 1162 OF 2011

transaction and execution of the cheque. At the same time,

the trial court given much emphasis to Ext.D1 sale

agreement, admittedly, entered into between the accused

and the complainant where Rs.20,000/- was paid by the

accused to the complainant's husband and according to

PW1, the said amount was repaid. In the instant case, the

trial court given much emphasis to Ext.D1 agreement which

has been tendered in evidence without examining anybody.

Regarding execution of Ext.D1 agreement and payment of

Rs.20,000/- as sale consideration, the complainant admitted

the same. But according to PW1, he had received back

Rs.20,000/- so paid. The case of the accused is that at the

time of execution of Ext.D1, she issued a blank cheque. She

did not state that the cheque was either signed or not signed.

In fact, the cheque was dishonoured as per Ext.P2, stating

that 'funds insufficient' and not for the reason 'signature 2025:KER:39060 CRL.A NO. 1162 OF 2011

differs'.

11. Normally, when the bank officials did not

notice any difference in the signature with that of specimen

signature of the payer, when there was no sufficient money

in the account of the payer to honour the cheque, the bank

would return the cheque for the said reason. At the same

time, where the bank officials notice difference in the

signature of the payer, they would record the same as a

reason or as an additional reason for dishonouring the

cheque. Here, issuance of cheque is admitted for a different

transaction. When such a cheque was dishonoured by the

bank without mentioning anything regarding difference in

signature, it has to be inferred that the cheque was issued by

the payer duly signed by him as that of the accused.

12. In a prosecution under Section 138 of the NI

Act, the complainant has an initial burden to prove the 2025:KER:39060 CRL.A NO. 1162 OF 2011

transaction and execution of cheque, so as to avail the

benefits of presumptions under Sections 118 and 139 of the

NI Act.

13. In this connection, it is relevant to refer the

decision of the Apex Court, reported in [2019 0 Supreme

(SC) 126 : 2019 1 KLT 598 : 2019 1 KHC 774 : 2019 1 KLD

420] Bir Singh v. Mukesh Kumar, where in paragraph Nos.

36 to 40 and 42, the Apex Court summarized the legal

position as regards to the applicability Sections 20, 87 and

139 of the NI Act, after referring the earlier decisions of the

Apex Court reported in [(2013) 1 SCC 177] MSR Leathers v.

S. Palaniappan, [(2008) 14 SCC 457] Southern Sales and

Services v. Sauermilch Design and Handels GMBH,

[(2001) 6 SCC 16] Hiten P. Dalal v. Bratindranath

Banerjee, [AIR 1958 SC 61] State of Madras v.

Vaidyanatha Iyer, [(2005) 5 SCC 294] Ranjitsing 2025:KER:39060 CRL.A NO. 1162 OF 2011

Brahmajeetsing Sharma v. State of Maharashtra, [(2007)

1 SCC 70] Rajesh Ranjan Yada @ Pappu Yadav v. CBI

through its Director, [(2012) 13 SCC 375] Laxmi Dyechem

v. State of Gujarat, [(2001) 8 SCC 458] K.N.Beena v.

Muniyappan, [(2012) 1 SCC 260] R.Vijayan v. Baby,

[(2009) 6 SCC 72] Raj Kumar Khurana v. State of (NCT of

Delhi), [(2007) 12 SCC 714] John K. John v. Tom

Varghese, [(2008) 4 SCC 54] Krishna Janardhan Bhat v.

Dattatraya G. Hegde and [(1992) 1 SCC 489] State of

Punjab v. Surinder Kumar. Paragraph Nos. 36 to 40 and

42 are extracted as under:

"36. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences 2025:KER:39060 CRL.A NO. 1162 OF 2011

of Section 138 of the Negotiable Instruments Act.

37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.

38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.

39. It is not the case of the respondent- accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the 2025:KER:39060 CRL.A NO. 1162 OF 2011

case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative.

40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.

xxxx

42. In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-

2025:KER:39060 CRL.A NO. 1162 OF 2011

complainant, it may reasonably be presumed that the cheque was filled in by the appellant- complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent-accused of the charge under Section 138 of the Negotiable Instruments Act."

14. On perusal of evidence given by PW1, it

could be noticed that Ext.D1 agreement, in between the

complainant and the accused was executed on 28.08.2006.

According to PW1, Ext.D1 was closed on getting back the

sale consideration. The case of the complainant is that after

receiving Rs.50,000/-as ready cash on 12.04.2008, Ext.P1

was executed. In fact, nothing is extracted to disbelieve the

said evidence of PW1 to hold that the complainant failed to 2025:KER:39060 CRL.A NO. 1162 OF 2011

discharge his initial burden in the matter of transaction and

execution of Ext.P1 cheque. Therefore, the trial court went

wrong in holding that the complainant failed to prove the

transaction and Ext.P1 cheque herein merely relying on